The Open Method of Coordination on health care after the Lisbon Strategy
II:
Towards a neoliberal framing?*

Abstract: This paper undertakes a content analysis of the discourse
on the Open Method of Coordination on health care (OMC/HC) in order to show
how equity and solidarity are increasingly linked to optimisation and, as such,
how neoliberalism increasingly frames health care. Some of the side-effects
of this reframing for politics are highlighted: legitimating and extending European
Union governance, reducing the space for oppositional formations and limited
citizenship. The analysis begins by interrogating the broader context of the
Lisbon Strategy II, after which the techniques of the OMC/HC and its substantive
outputs are analysed.

As a legal scholar I am interested in how health care is framed, and the way
in which it is being reframed within a neoliberal mould, by the European
Unions (EUs) legal and governance discourses. In the EU health care
systems (HCSs) have traditionally been framed as being about ensuring access
to health care in a way that fosters equity and solidarity (Flear 2007; Hervey
2007). However, those systems are under pressure from such factors as aging
populations, new and more expensive treatments, rising public expectations,
intensified fiscal pressures generated by the current global financial and economic
crisis, and cross-border patient flows (for a review see: Flear 2006; Hervey
2008). The latter have been promoted by the European Court of Justices
(ECJs) jurisprudence,(1) which conjures patients
of HCSs as market citizens (Everson 1995; cf. Lehning 1997 and Kostakopoulou
2005) as it provides them with a limited right to migrate to another member
state of the EU where they pay for and receive healthcare treatments, the cost
of which is then reimbursed by their home member state (Hervey 2007).

As I note elsewhere, this jurisprudence is double-edged (Flear 2007). It might
inter alia actually promote equity where it prompts state action to
assist those in most need of treatment, for instance by reducing waiting times
and providing everyone with the opportunity to migrate in a structured way that
also helps to manage or reduce costs and stimulate innovation. The jurisprudence
might also foster solidarity, particularly between patients in different member
states, such as when they work together to develop treatments for their conditions.
But there are also risks. One risk is that free movement might generate excessive
and unpredictable flows of patients, with the consequence of unplanned costs
and wastage of increasingly scarce public resources. Another, perhaps more salient,
risk is the circumvention of waiting lists by the middle classes. They are most
likely and able to travel abroad, because of their greater confidence, their
possession of foreign language skills unavailable to those from lower socio-economic
groups, and, crucially, their ability to pay for travel and treatment upfront
and wait for reimbursement. This threatens equity and the solidaristic
basis of healthcare systems, [by] submersing constitutional (and especially
social) values beneath the swirling currents of the market (Flear 2007:
240; cf. Newdick 2006).

Safeguarding equity and solidarity as the frame for health care by buttressing
them against neoliberal jurisprudence and making the best of the opportunities
it provides, as well as meeting the other challenges to HCSs, has not proven
straightforward. At the time of the Open Method of Coordination on health cares
(OMC/HC) inception in 2004, obtaining an alternative or supporting solution
through Community legislation seemed an unrealistic prospect. To some extent
this was due to the EUs famed constitutional asymmetry, which privileges
the economic sphere through the internal market but provides limited legal bases
for action in the social sphere (Scharpf 2002), for instance, by the prohibition
on the harmonisation of differences between HCSs under Article 152 EC Treaty(2)
(Flear 2007: 240). New governance seemed to provide the only viable buttress,
and the OMC/HC seemed the most plausible appropriate form available to coordinate,
support, monitor and assess the impact of [...] [member state] reforms, promoting
universally accessible, high-quality and sustainable health and long-term care
for all (EC 2009b) and maintaining distinct and autonomous HCSs (cf. Hervey
and Trubek 2007)(3).

Yet, it is arguable whether the OMC/HC is suitable as a buttress. Some have
argued that the Open Method of Coordination (OMC) more generally promotes moves
towards the free market or the market compatibility
of national welfare settlements, with the consequence that social welfare settlements
of the Continental model are pushed towards the Anglo-Saxon
 a (more) neoliberal  model (Scharpf 2002; Offe 2003; Moreno and
Palier 2005; Büchs 2007; Büchs this issue). Alternatively, it has
been suggested the OMC/HC in particular does not advance, circulate and disseminate
liberalisation, privatisation, competition, and consumer choice  key referents
of neoliberalism  in health care provision (Hervey 2008). Whether used
implicitly or explicitly, and whether or not it is viewed as operating through
the OMC, neoliberalism is commonly viewed as an economic doctrine promoting
the dominance of a market ideology that seeks to limit the scope and activity
of governing (cf. Brown 2005: 37-38; Kröger this issue).

In this paper I trace the operation of neoliberalism as a political rationality
and governmentality that, as Ong puts it, results from the infiltration
of market-driven truths and calculations into the domain of politics (Ong
2006: 4). In this contrasting understanding, neoliberalism seeks to optimise
societal and individual energies by inducements to self-management, which facilitates
governing at a distance by and through freedom. As a consequence of this move
the scope and activity of governing expands. Moreover, the space for politics
is reconfigured by the erosion of the gap in liberalism between the economy
and the social. The development of oppositional formations and claims located
outside market rationality is stymied by this move, and citizens are limited
as they become rendered in a neoliberal mould as sovereign individuals pursuing
their self-interest. In order to trace neoliberalisms operation I undertake
a content analysis of the discourse on the relaunched Lisbon strategy, the Lisbon
Strategy II (LSII), and the techniques and substantive outputs of the OMC/HC.
The analysis highlights the growing linkage of equity and solidarity with optimisation
in the context of modernisation, which serves to place health care
within a neoliberal frame.

The argument made in this paper  that neoliberalism qua political rationality
is being advanced, circulated and disseminated at the EU level through
the OMC/HC  supplements and reinforces analyses highlighting the neoliberal
orientation of the OMC more generally (Haahr 2004)(4) and the national welfare reforms of the member
states (an orientation highlighted by the construction of citizen-consumers
in the United Kingdom and beyond: Clarke et al. 2007). Other reasons for interrogating
neoliberalisms operation by reference to the OMC/HC include the following.
As the papers in this collection demonstrate, the OMC is growing in importance.
According to some the OMC is now a template for EU soft law mechanisms (Greer
and Vanhercke 2010). That the OMC is the preferred method for EU action in sensitive
policy areas at the core of national sovereignty, such as health care, affirms
this point. Further affirmation, and an added reason for interrogating the OMC/HC,
is to be found in moves to reinforce the current OMC/HC and the wider Social
Protection and Social Inclusion (SPSI) OMC (OMC/SPSI) (EC 2008a). In essence,
the OMC is expanding EU involvement and power, and this necessitates reflection.
By shedding light on how we are being governed by and through neoliberalism,
this paper seeks to contribute towards to this collection, the wider commentary
on the OMC, and the broader subsequent task of critical reflection and imagining
alternative ways of governing and being.

In the next chapter I outline neoliberalism and the governmentality perspective
adopted for the analysis of the LSII, as well as the techniques and substantive
outputs of the OMC/HC in section 3. In section
4 I summarise the paper and discuss the findings.

In order to trace neoliberalisms operation I undertake a content analysis
of the discourse found in official documents(5) and webpages. The analysis is necessarily non-exhaustive
and indicative, and it is divided into the overarching context for the OMC/HC
provided by the LSII (see section 3.1), techniques of the
OMC/HC (see section 3.2) and its outputs (see section
3.3). Neoliberalism is understood as a political rationality (Foucault 2008,
interpreted by Lemke 2001 and especially Brown 2005: 39-44). Rose et al. describe
this as a way of doing things that [is] oriented to specific objectives
and that [reflects] on itself in characteristic ways (Rose et al.
2006: 84). The fusion of various modes and techniques of governance with neoliberal
political rationality can be understood as governmentality or that which organises
the conduct of conduct (Foucault 1998: 2002). In this view power is relational
and dispersed across society through a variety of often unrecognised, informal
and sometimes contradictory elements, including discourses. Power often operates
without intention and it can produce unforeseen consequences.

As a way of doing things neoliberalism seeks to organise policies in the
market and non-market spheres by extending and disseminating market rationality
from the former to the latter and into all domains. The discursive and
practical integration of the economy and the social has as its corollary a
narrowing of the gap (and distinction) between them found in liberalism (Brown
2005: 45). The criteria for good social policy are thus limited and conflated
with economic optimisation. Governance openly responds to market needs through
its various institutions and policies; cost and benefit become the measure of
its practices. Entrepreneurialism frames political discourse. The reason for
all this is neoliberalisms central objective: The gathering, deployment
and optimisation of the energies of individuals and the population as a whole
(Brown 2005: 39-44), so-called biopower (Foucault 2008).

Neoliberalism governs at a distance and is operationalised through such ways
of doing things as budgets, audits, standards and benchmarks (Rose
et al. 2006: 91). These give the impression of devolution, but in fact they
govern and seek to optimise performance through the production of self-management.
That is, institutions and individuals are treated as autonomous and
responsible agents. In this way, neoliberalism seeks to extend and enhance the
scope and activity of governing.

Governmentality gives access to the broader significance of the powers operating
through political phenomena like the OMC. In particular, since state-like organisations
like the EU are the singularly accountable sites of power in society, legitimacy
becomes a vital concern in understanding the operation and use of neoliberalism
through the OMC/HC and the LSII (Brown 2006: Chapter 4, modifying Foucaults
account, which ignores legitimacy; cf. Pfister this issue). An emphasis on governmentality
brings out the ways of governing and, therefore, the underlying rationalities,
and their effects.

The operation of neoliberalism in the overarching architecture of the
LSII reinforces its operation in the OMC/HC as the frame for health care.
Analysis of the architecture also exposes neoliberalisms use as a way of
legitimising EU power and governance, the way in which that involvement is
naturalised and expanded through neoliberalisms depoliticising effect,
and its limitation of politics and citizenship (see further, Zeitlin 2008; cf.
Hervey 2008, who misses the strategys framing potential).

To begin with the operation of neoliberalism, by way of essential background,
the OMC, and its variants such as the OMC/HC (sketched more fully in section
3.2), were inaugurated to further the Lisbon Strategy. The latter was launched
by the European Council in March 2000, and had the goal of making the EU the
most competitive and dynamic knowledge-based economy in the world, capable of
sustainable economic growth with more and better jobs and greater social cohesion
by 2010 (CEU 2000). The original Lisbon triangle being concerned
with economic, social and employment policies was replaced by a quadrangle
with the addition of the environment at the EUs Gothenburg summit on Sustainable
Development Strategy in 2001 (Armstrong 2008: 413-414).

However, the Lisbon Strategy was relaunched in 2005 with an explicit
focus on growth and jobs  that is, market rationality. This followed a
mid-term review in 2003-4 which criticised the strategys overarching
design and the OMCs role within it. In particular, the report of the High
Level Group chaired by Wim Kok highlighted benchmarking and peer review within
the OMC as ineffective. The Kok Report (2004) recommended that the
strategys key techniques, its objectives, targets and indicators, be
refocused on growth and jobs. Further pressure in this direction was provided
by the then incoming Barroso Commission (EC 2005b), which essentially
reinforced the Kok Reports findings. The consequence of this political
and institutional pressure was a focus on growth and jobs.

As Zeitlin explains, the architecture of the LSII fuses the European
Employment Guidelines and the Broad Economic Policy Guidelines into a single
set of 24 Integrated Guidelines for Growth and Jobs (Zeitlin 2008: 437).
Social objectives are absent from this new overarching architecture. The importance
of this reframing is made acutely apparent by the Commission, which notes how
[m]ost importantly, the relaunch of the Lisbon process in March 2005 has
sharpened the context into which work on social protection and inclusion
must fit. The revised Lisbon strategy concentrates on policies to boost
growth and employment and seeks to overcome the implementation gap identified
in the review of Lisbon (EC 2005a: 3, emphasis added). That is, the social
fits into the economy  the market and economy frame the social
and, therefore, the OMC/SPSI, which streamlined the pre-existing social OMCs,
including the OMC/HC (infra section 3.2). This framing of
the social further indicates the extension and dissemination of market rationality
into formally non-market domains, which are thereby subordinated.

Nevertheless, the European Council has, in its 2005-2009 spring
meetings, repeatedly reaffirmed the importance of creating greater social
cohesion and reducing social exclusion as core objectives (CEU 2005, 2006,
2007, 2008, 2009). This is supposed to be achieved through interaction between
the streamlined OMC/SPSI and the Integrated Guidelines (Zeitlin 2008: 438).
Yet, there is little evidence of such a relationship. For instance, the
political commitment of the European Council to the social dimension of the
Lisbon Strategy  now II  is not found in the Integrated Guidelines
used by member states in the preparation of their National Reform Programmes
(NRPs, produced under the LSII), nor in the assessment of the NRPs by the
Commission (Zeitlin 2008: 441). In the 2006 NRPs just ten member states
included social cohesion/inclusion objectives (including gender equality) in
their national priorities or referred to them extensively. Of the other member
states, nine briefly cross-referenced the NSRs (from the OMC/SPSI) submitted
the previous month, four referred exclusively to labour market inclusion, and
the remaining four omitted any mention of social cohesion altogether (ibid.:
439).

Linking forward to the principle of subsidiarity (infra section
3.2), although national ownership of the OMC is stressed there is a structural
bias towards finance and economics ministries i.e. those most likely, given
their remit, to privilege market rationality in their work (Zeitlin 2008: 439-440).
This bias generates difficulties for the social partners and health ministries
since they have little history of contact with the ministries. The place of
these national actors, and the apparent lack of integration with social and
health ministries, further demonstrates the primacy of market rationality in
the LSII.

In summary, it appears member state social policies are to be coordinated in
pursuit of financial sustainability and employment promotion, which the OMC/SPSI
was developed to overcome (Zeitlin 2008: 442). In support of this
Zeitlin uses the example of the 2007 joint recommendations. These note eight
member states who received formal recommendations to accelerate the reform of
their HCSs in order to ensure the sustainability of public finances. Moreover,
another three member states were exhorted to accelerate implementation of overdue
health care reforms. The subordination of the social to the economy is made
clearer in a statement on the Commissions webpage for Growth and
Jobs: [w]e need to make Europe an attractive place to invest and
to work and [t]hat means budgetary sustainability, better
regulation and the right tax and benefit systems (EC 2009a: emphasis added).
Benefits systems, which can be assumed to include HCSs, are more explicitly
placed in the service of the economy.

Overall, the LSII marks an overt response to market needs. Social
progress is not just conflated with, but is subordinated to and framed by the
economy. The policy areas governed by the OMC, such as health care, are
enfolded, infiltrated and animated by neoliberalism through the LSII. The
architecture reinforces the modernisation agenda of the OMC/HC and
the reframing of health care as being about optimisation. Ensuring sustainable
public finances, promoting and facilitating economic optimisation, and the
index of cost and benefit, become the key measures of successful health care
policy. This framing reinforces the linkage of equity and solidarity with
optimisation in the OMC/HC. Consequently, the visibility and autonomy of EU and
national social policy is undermined.

The EU is not just concerned with governing the market. Through the LSII and
the OMC/HC, the EU reveals and projects itself as thinking and behaving like
a market actor right across its spheres of activity (cf. Brown 2005: 42). The
prominence of market rationality reveals the deeper rationale and use of neoliberalism.
It is a way of legitimating and extending EU power and governance into
sensitive policy areas at the core of national sovereignty. This process is
abetted by the effect of depoliticisation: Neoliberal discourses give the impression
of being natural, putting a gloss over their historical and political production.
Neoliberalism is thereby installed as commonsense. This process is given further
assistance by the formal emphasis on the maintenance of differences between
HCSs, a shell within which neoliberalisms operation is concealed, and
which risks limiting reflection on neoliberalisms use and consequences.

Neoliberalisms legitimating and empowering function can be brought into
sharper focus by reference to just a few examples. For instance, the Lisbon
Strategy sees the EU taking explicit responsibility for the economy even as
it does so by governing at a distance, by and through the freedom of responsibilised
autonomous agents. The Kok Report (2004) was produced with the advice of political
appointees, business people and academic economists. The market-oriented expertise
of the last two was used to provide authority and legitimacy in the absence
of significant empirical evidence (Zeitlin 2008), which highlights the importance
and operation of neoliberal rationality as a way of producing results that might
legitimate and extend EU governance. The importance of producing output legitimacy,
i.e. producing results that legitimise EU governance (Scharpf 1999), is highlighted
by Commission President Barroso. The President figures prominently on the EUs
LSII Growth and Jobs webpage, and is quoted as saying: Europeans
have told us that they want results, not divisive ideological battles. The Lisbon
Growth and Jobs Strategy is the way we can deliver those results
(EC 2009a: emphasis added).

As a further consequence for politics, the subordination of the social
to the economy erodes the discursive space available for the development of
oppositional formations and claims is that are located outside capitalist
rationality yet inside liberal democratic society, that is, the erosion of
institutions, venues, and values organized by nonmarket rationalities in
democracies (Brown 2005: 45). This limits citizenship to the pursuit of
self-interest and renders more clearly the sovereign, neoliberal citizen.

Having outlined the context and programmatic level provided by the architecture
of the LSII, I turn to examine the operationalisation of neoliberalism through
the techniques of the OMC/HC. The latter was launched in October 2004, but with
the LSII it joined the OMCs on social inclusion and pensions to become
a strand of the OMC/SPSI (Greer and Vanhercke 2010; Dawson this issue). The
Social Protection Committee (SPC) (a high level group of officials) provides
advice on and manages the OMC/SPSI. The OMC/HC comprises three main stages.
As I explain, these entail various techniques which serve as repositories and
sites for the operation of neoliberalism, an analysis which contrasts with extant
contributions, such as Herveys (2008: 110-113).

The first stage involves the setting of objectives at the EU level,
some held in common with the other strands of the OMC/SPSI, three so-called
common objectives, and others that are specific to the health care sector. A
set of indicators are then used in the third stage to assess member state
performance.

In the second stage, member states submit their National Report on
Strategies for Social Protection and Social Inclusion (National Strategic
Reports or NSRs) every three years. The reports include a section on health
care, which is used to explain member state progress on meeting the common and
sector specific objectives. Various national and sub-national actors are
supposed to participate in the drafting process (Kröger 2007). This
drafting process provides the first main opportunity for peer review (the
second occurs in the third stage).

The third and final stage is where member state performance is evaluated
by the European Commission (Commission) (in the guise of the Directorate General
on Employment and Social Affairs). The Commission undertakes an analysis and
assessment of the NSRs in order to determine member state progress towards
the common and sector specific objectives established in the first stage of
the OMC/HC. This process is assisted by the indicators adopted in June 2006,
fully agreed by the SPC in May 2008. The Commissions assessment 
the substantive outputs discussed infra section 3.3 
is published in a joint report. This provides the second main opportunity
for peer review. This report is adopted by the Commission and the Council.
They then submit the report to the spring European Council, which is thereby
informed of progress in the area of the OMC/SPSI.

It will be apparent from the foregoing that the OMC/HC renders national health
care policies legible and open to discussion and development at the EU level
by deploying various techniques: the involvement of various actors, information
gathering, peer review, indicators, and consequent learning. The techniques
operate together and with cumulative effect to gather and enhance the energies
in society by inducements to institutional and individual self-management (cf.
Haahr 2004: 217) and to prepare the ground for reframing the understanding and
organisation of health care (section 3.3). The techniques
are steering tools (cf. Hartlapp this issue) that promote governance
by and through information or knowledge (cf. Pfister this issue). As Foucault
observes power and knowledge directly imply one another [ ] there
is no power relation without the correlative constitution of a field of knowledge,
nor any knowledge that does not presuppose and constitute at the same time power
relations (1998: 27). It is in discourse, here that on the OMC/HC and
the LSII, that power and knowledge are joined together (ibid.: 100).

In this vein the techniques permit, as Rouse explains, a more extensive
and finer-grained knowledge, and this, enables a more continuous
and pervasive control of what people do, which in turn offers further possibilities
for more intrusive inquiry and disclosure (Rouse 2003: 99). Individually
and collectively the techniques open up patterns of thought on health care (cf.
Hartlapp this issue) by penetrating the knowledge domains and national
frame of reference of member state bureaucracies (Haahr 2004:
219, emphasis added). It is noted that given the supposed successes of using
the techniques on the economic side under the LSII [i]t seems [...] logical
to progressively adopt some of the methods and the approaches [such as targets,
see infra] [...] for the Social OMC [...] It would [...] ensure optimal interaction
between jobs, growth and social policy (EC 2008a: 4). Optimisation as
a reason for sharing information in the context of the LSII is made clear by
the Commission, which stresses how the relaunch provides more room for
the learning, exchange and policy dissemination which participants value
(EC 2005a: 10). This renders health care susceptible to reframing as
a neoliberal  market-oriented  issue rather than as being about
equity and solidarity, which is of course the objective of the techniques. The
effect of depoliticisation assists reframing in that it helps to make the extension
of EU involvement in the governance of health care appear natural.

To focus on the involvement of various national, sub-national and civil society
actors in the second stage report drafting process and the first instance of
peer review at the second stage, this underlines the formal importance of the
principle of subsidiarity to the OMC in general and the OMC/HC in particular
(Armstrong 2008: 420-421). Subsidiarity, institutionalised in Article 5(2) EC
Treaty,(6) emphasises the importance of ensuring
governance is undertaken at the lowest possible level. The formal importance
of involvement from various actors across society was reinforced after the revision
of the Lisbon Agenda in 2005 (ibid.; supra section 3.1)
and is emphasised in moves to reinforce the OMC/HC by enhancing ownership
(EC 2008a: 2) through peer reviews, mutual learning and involvement of
all relevant actors (ibid.: 7), to include [e]nsuring greater involvement
in peer reviews of officials at local and regional levels (ibid.: 5).
As Haahr puts it, in the OMC, society is seen as a pool of resources,
the energies of which can be released through the use of partnerships
(Haahr 2004: 215) and contractualism (ibid.: 217). Peer review at
the second stage augments the emphasis on subsidiarity since it involves asking
member state officials and outsiders from civil society to participate
in structured and contextualised exchange of information (Greer and Vanhercke
2010). Subsidiarity therefore valorises market rationality through its figuration
of the agency and responsibility of included individual and institutional actors,
who are deemed capable of self-management and participation in the deliberative
process of information gathering and drafting. It appears real exchanges
of practical knowledge are promoted by the inclusion of line officials
rather than the international division of health ministries (ibid.). Participation
positions and co-opts the actors for the reframing of health care whilst also
reframing them in a neoliberal mould.

Turning to the objectives of the OMC/HC, these serve as guidelines for national
policy and they are established in the first stage through reflexive evaluation
and targeted inducement to generate information on progress (cf. Hartlapp this
issue). The objectives valorise market rationality and begin the reframing exercise
by defining what is to be achieved. Examples of common objectives include the
promotion of social cohesion, equality between men and women and equal
opportunities for all through adequate, accessible, financially sustainable,
adaptable and efficient social protection systems and social inclusion policies
(EC 2007: 83, emphasis added). Whilst social values pertaining to equity and
solidarity are stressed these are to be achieved through optimised
social protection systems. Similarly, the sector specific objectives highlight
ensuring access for all to adequate health and long-term care [ ]
and that inequities in access to care and in health outcomes are addressed,
but they must also be read with what appears to frame and support them: financial
sustainability and optimisation (EC 2007: 83). Both sets of objectives
not only extend market rationality and facilitate governing at a distance by
inducements to self-management. They also promote moves away from equity and
solidarity as the frame for health care, which are limited by their subordination
to, and not just conflation with, optimisation.

Information gathering and exchange, particularly in the first stage report
drafting, the first instance of peer review and third stage production of joint
reports (infra section 3.3), is undertaken by those in the
partnership. This facilitates governing at a distance by involving
those who provide the information, making them complicit in the work of assessing
whether objectives are met. Such work is vital for reframing health care since
it constitutes the field of power/knowledge. The field is augmented by the PROGRESS
programme,(7) which:

[W]ill support the enhancement of statistical capacity and data collection
[...] For example [...] on life expectancy by socio-economic status [...]
Greater involvement of the scientific community and stronger links with
other ongoing research activities [...] will further contribute to developing
knowledge- and evidence-based policies (EC 2008a: 7, original emphasis).

This social data would enhance optimisation. Indeed, the programme also
offers support for the testing of new tools for mutual learning and
exchange of best practices [...] [such as] the development of social
experimentation as a way to test innovative ideas [...] for example in
the field of [...] long-term care (ibid.: 7-8).

Peer review at the second and third stages can encourage poor performers
to rethink their strategy (Trubek and Trubek 2005: 94, cited also in Hartlapp
this issue). In the review of the OMC/SPSI peer reviews, including the OMC/HC,
it is noted context information, a stronger analytical base and broader
dissemination of the results would contribute to the identification of good
practices and facilitate policy transfer (EC 2008a: 2). The information
gathered and exchanged promotes rethinking and reframing through the assessment
of performance and the generation of peer pressure for change (infra section
3.3). Peer reviewers are coopted into taking responsibility. At the second
stage the involvement of actors from the national context creates and positions
them as peer reviewers. They are deemed to possess equal capacity to review
performance, creating the impression of equality of position and ability, and
partnership. The actors are made responsible for the reframing of
national policy when they determine whether national policy meets the objectives
set at the first stage, and by providing further information towards the development
of indicators, for use in the third stage. Review at the third stage by the
Commission places member states on an equal footing in terms of the formality
of review. The member states are to be assessed and, therefore, placed in a
hierarchy of progress or performance through the use of the common and sector
specific objectives established in the first stage of the OMC/HC as well as
indicators. The Commission takes advantage of its ability to muster expert
views and its position as a hub of the OMC process (Greer and Vanhercke
2010).

Moving to indicators, they were not agreed until after the Lisbon-Strategy
II and not fully until 2008. Indicators are developed by the Indicators Subgroup
of the SPC and are to be used by Member States to assess their progress
towards reaching the common objectives (Greer and Vanhercke 2010). The
indicators operate with the common and sector specific objectives as a technique
aimed at making member states take responsibility for their autonomy during
peer review. The 14 overarching indicators (including 11 context indicators)
are meant to reflect the newly adopted overarching objectives (a) social
cohesion and (b) interaction with the Lisbon strategy
(EC 2009c). These indicators are used to assess whether common objectives are
met. They include life expectancy and per capita health expenditure.

There are three main groups of sector specific indicators focused on
different core objectives (EC 2006: 40-50; EC 2008b: 40-64) as follows:

Access to care (including inequity in access to care) and
inequalities in outcomes: Including the proportion of the population covered by
health insurance, life expectancy, self-perceived general health and infant
mortality.

Quality of care (effectiveness, safety and patient centredness):
Including various cancer survival rates, vaccination against influenza, length
of hospital stay, patient satisfaction, numbers of doctors and nurses and
coverage of public and private insurance.

Long-term sustainability of systems (expenditure and efficiency):
Including total per capita health expenditure and percentage of public/private
health care expenditure.

1. and 2. clearly focus on equity and solidarity, and since they must be sustainable,
the focus of 3. can be said to be the same. However, irrespective of whether
they are more about equity and solidarity than the market or economy, the indicators
seek to optimise performance by providing the means to assess whether the objectives
are met. This focus on optimisation ensures equity and solidarity are subordinated
within a neoliberal frame.

Data corresponding to the new set of indicators is also produced (SPC
2008), and this further constitutes the field of power/knowledge. The data
lists Member States (not always comprehensively given limitations in available
data) in relation to each indicator. For instance, in 2006, life expectancy was
79.5, 71.1 and 80 in Belgium, Lithuania and the Netherlands respectively. This
data can be used by actors to highlight differences in performance, but the
indicators and data have yet to be used as the basis for target setting or
benchmarking. However, it is noted there is a need to make a better use
of the commonly agreed indicators (EC 2008a: 3). Indeed, the indicators
are sufficiently robust as a basis for the introduction of quantitative
targets [...] [which] would introduce a new dynamism (ibid.: 5), in
particular by supporting the implementation of the objectives. Examples of
targets include health-status related targets, for example on increasing
life expectancy [...] and healthy life years, and reducing infant
mortality, but they are directed at optimisation: Health status is
decisive for active participation in the labour market, longer working lives
and for reducing poverty (ibid.). Even without an overt reference to the
market, the indicators, perhaps to be enhanced by targets, place equity and
solidarity within a neoliberal frame because they seek to optimise performance.
In any case, optimisation is reinforced by the explicit overarching objective
of interaction with the LSII. Thus, the indicators provide a more or less
technical means of locking the shaping of conduct into the optimization of
performance (Haahr 2004: 218).

To summarise, although traces of equity and solidarity are apparent, the
techniques are about producing self-management in order to optimise
performance. This reinforces the neoliberal framing of health care provided by
the LSII.

Regard to substantive outputs, principally in the form of joint reports
and SPC opinions and documents reviewing the NSRs, reveals more about how
equity and solidarity are linked to and subordinated by optimisation, which
then increasingly frames health care (cf. Hervey 2008: 110-113). Pre-LSII and
OMC/HC health care seemed more clearly framed by equity and solidarity, for
instance in references to equality of access to health care as a way of
producing social inclusion (EC 2004). Some linkage was made to optimisation by
making health care more affordable and accessible (ibid.: 64). Yet,
with the inauguration of the OMC/HC around the time of the LSII, the linkage
was made more explicit. This is demonstrated by the SPCs valorisation of
market rationality as it highlights the use of exchanging information on best
practices:

[S]uch as new types of organisations, different management structures,
new budgeting and financial procedures (e.g. prospective budgets, activity
based financing fix-level payment schemes e.g. for medicines), hospital
collaboration structures, payment systems to staff and fee negotiation may
be of interest to the OMC work (SPC 2005: 31-32, emphasis added).

Other useful information includes that on:

[E]vidence-based prescriptions and cost-saving distribution
of pharmaceuticals, regulation, supervised competition and privatisation,
and contractual relationships between purchasers and providers can
contribute to a more rational and cost effective use of care systems may
also be useful in helping Member States develop their own policies
(ibid.: 32, emphasis added).

The SPC emphasises ways of optimising performance by reducing state
expenditure and governing by and through techniques of self-management such as
competition, privatisation and contracts. In these ways market rationality and
rational economic behaviour are extended and disseminated to the formerly
non-market policy area of health care, which they increasingly frame.

Post-LSII traces of equity and solidarity are again present, for instance in
the 2008 joint reports focus on inequalities (CEU 2008). However, bearing
in mind the LSIIs architecture, these values are perhaps more clearly
linked with and framed by optimisation, particularly in the current financial
and economic crisis. For example, the SPC highlights optimisation when it notes
[i]mproving the health status of the population, within the EU in general
but particularly in many Member States of more recent accession is of utmost
importance. This neoliberal turn is then reinforced by an explicit reference
to the economy when it is noted improved health will contribute to the
quantity and quality of labour force, as well as to the overall productivity
levels of the economy and to economic prosperity (SPC
2007: 9, emphasis added). This pattern of linkage and framing is repeated later
when it is noted [g]ood health is indeed the precondition both for well-being
and good quality of life, as well as for high productivity and active
ageing. Furthermore, healthcare should also be considered as a highly innovative
sector with considerable potential for growth and employment (ibid.: 12,
emphasis added).

In the 2008 and 2009 joint reports economic, employment and social policies
are noted as being closely inter-related and mutually supportive.
Moreover, [w]ell-designed social protection systems [...] are productive
factors contributing considerably to [...] economic achievements
(CEU 2008: 6, emphasis added; cf. a focus on financial sustainability, public/private
funding and privatisation in CEU 2009: 12-13). As the report continues: Ongoing
[...] healthcare reforms have a positive impact both on the sustainability of
public finances and on labour market behaviour. Successful action on healthcare
improves quality of life and productivity (ibid.: emphasis added).
The linkage again serves to emphasise optimisation and, therefore, install HCSs
within a neoliberal frame.

Reforms or modernisation strategies are aimed at ensuring
[...] long-term financial sustainability, and beyond this [...] social sustainability,
that is [...] high quality, accessible health services (SPC 2007: 13).
The point here is not just that through various strategies market rationality
is used to produce sustainability and optimisation, but that the latter supplants
equity and solidarity as the frame for HCSs. Equity and solidarity are increasingly
subordinated to, and not just conflated with, market-like conditions in the
modernisation of public services. The use of optimisation strategies
can be demonstrated by the following three examples, taken from the joint reports.
First, optimisation through competition is valorised. Competition is supposed
to promote efficiency [ ] [and this is to be achieved by]
separating the provision and funding roles. The separation is
a way of fostering competition between health service providers
(CEU 2007: 9). Competition among providers (and in some countries among
insurers) is seen as a means to reduce costs of care and to enhance quality
of provision. Yet, competition has to be regulated so as to best
balance access by all, high quality and financial sustainability (CEU
2006: 14; CEU 2007: 9, emphasis added). Hervey points out no normative
statement is attached to the emphasis on competition, and does not appear
to form the basis of future benchmarking or best practice statements (Hervey
2008: 112). That might well be, but the stress on regulation sanctifies competition
because it is made to seem more social in nature or health
care friendly (cf. Offe 2003). The normative impulse here is for optimisation
through the use of market rationality.

Second, an emphasis on a more rational use of resources in HCSs
deepens the reframing exercise by references to overall caps on expenditure,
co-payments and use of generic medicines, staff guidelines, and health technology
assessments (CEU 2007: 9). It is noted how member states are seeking
greater effectiveness and efficiency as well as aggregate cost containment through
reorganisation, prioritisation and the development of incentive
structures to users and providers (CEU 2006: 5, emphasis added).
The language is that of incentives and, by implication, disincentives and sanctions.
Further, it is noted that the OMC/HC should focus on strengthening
incentives to users and providers for rational resource use
(CEU 2006: 15, emphasis added). Thus, both users and providers are constructed
as rational actors who are to be steered towards rational economic behaviour
within a market-like context.

Third, patient choice is noted and it reinforces the neoliberal framing
of HCSs. It is not just institutions that must self-manage, but also
individuals. The OMC/HC should focus on [ ] increasing patient
choice and involvement (CEU 2006: 15). Also, to enhance [ ]
patient satisfaction a more patient-centred pattern of care is developing
[ ] ensuring patients rights, choice, involvement in decision-making
and feedback through patient surveys (CEU 2007: 8). The focus on choice
builds on and enhances the importance of competition and incentives, since
choice can only be achieved through different providers, which implies a degree
of competition between them and incentives for action. Choice and rights to
treatment (supra 1.) figure patients as more active, sovereign individuals in
the liberal mould  they must be such in order to make choices and wield
rights. Hervey notes patients, although their choices are to
be enhanced, remain patients, not consumers
(2008: 113). Yet, patient enhancement through choice and rights are well-known
ways of introducing market mechanisms into the provision of publicly funded
services (Le Grand 2003) and complement wider moves within medicine to activate
patients and encourage self-management (Rose 2007: Chapter 5).

Enhanced patients are, in common with consumers, endowed with agency
and deemed able to self-manage as entrepreneurs, rational actors utilising and
displaying economic behaviour within the context of market-like conditions fostered
by regulated competition and incentives. Patients are consumers
in all but name. The figure of the neoliberal citizen feared by some as only
too present in the ECJs jurisprudence reemerges in the substantive outputs
of the OMC/HC. As Brown explains, within this neoliberal frame citizens are
reduced to an unprecedented degree of passivity and political
complacency. The model neoliberal citizen is one who strategizes for
her- or himself among the various social, political, and economic options, not
one who strives with others to alter or organize these options
(Brown 2005: 43, emphasis added). Patients might be constructed as active, but
they must operate within the given market order. As such patients must tend
to their own interests, and they are deemed incapable of sharing power. This
construction undermines the fostering of a public sphere aimed at democratic
political culture and community (Brown 2006: 89).

Stepping back, the context of the current global financial and economic crisis
can be seen to draw the neoliberal frame for health care even more clearly 
unsurprising, but nonetheless revelatory. For instance, the SPC notes health
and long-term care directly contribute to economic growth and employment
(SPC 2009: 3). Equity and especially solidarity are noted, but again linked
to, and framed by, optimisation: In the present context of economic downturn,
solidarity is key to restore citizens confidence and help pave the
way for recovery (ibid.: emphasis added). Further, [t]he importance
of health and care as strategic and emerging sector should be strengthened in
light of its role in matching future labour demand and providing growth potential
(ibid.: 4). Of course, the focus on, and increasing installation of, neoliberalism
as the frame for health care is expected in the context of the LSII and how
the SPCs work since its establishment has been largely determined
by the strategic goal for the EUs socio-economic progress set out at [...]
Lisbon (EC 2009d) (supra section 3.1).

As a result of the growing linkage between the social and the economy
produced by neoliberalisms operation at the level of the
operationalisation of the LSII, the gap between them is narrowed. This assists
the extension and circulation of neoliberalism into the social, here
legitimating and extending EU governance into health care. The narrowing gap
also reemphasises the production of limited citizens and the reduced discursive
space for politics, with the attendant undermining of oppositional formations
and claims.

In this paper I used a governmentality approach (section 2)
to trace the operation of neoliberalism as the frame for health care (section
3). The analysis demonstrates the increasing use of neoliberal political
rationality through the architecture of the LSII (section 3.1),
techniques of the OMC/HC (section 3.2) and its substantive
outputs (section 3.3). There are certainly traces of equity
and solidarity (particularly in section 3.2 and 3.3),
yet especially post-LSII there seems to be a stronger link made between equity
and solidarity on the one hand and the market/economy on the other. Since the
link is directed at producing optimisation, equity and solidarity are reworked
and transformed by, and increasingly subordinated to, neoliberalism, which then
frames health care.

Neoliberalism bypasses ideological battles despite being highly ideological,
because it is profoundly depoliticising. Indeed, the EUs choice
for neoliberalism is glossed over by an emphasis on producing results. Neoliberalism
is a non-choice: It is the commonsense (and only) response to the demand for
growth and jobs. Besides reinforcing the operation of neoliberalism as the frame
in the techniques and substantive outputs, the LSII highlights the importance
of the supposedly non-ideological and impartial market in legitimating reform
and policy choices, as well as the extension of EU governance into sensitive
areas like health care, as something authorised by citizens. As a further consequence
for citizenship, neoliberalisms operation through the LSII, and the techniques
and substantive outputs of the OMC/HC, reduces the discursive space for politics
and the potential for oppositional formations. Consequently, the figure of the
neoliberal citizen in the ECJs jurisprudence is perpetuated and rendered
more strongly in EU discourses (especially in relation to 3.3).
Given its nature and consequences it appears the OMC/HC is unable to buttress
HCSs against neoliberalism.

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Endnotes

(*) I gratefully acknowledge the support of the
British Academy (award number SG-48186, under the title EU Governance
of AIDS, Cancer and Obesity: Governmentality, Citizenship and Polity).
The theoretical perspective used in this paper was honed in summer 2008 when
I was a visiting scholar at the Faculty of Law, University of Cambridge. I am
grateful for its hospitality and I am indebted to Catherine Barnard for her
support. Thanks are due for comments and insights from Tawhida Ahmed, Mark Dawson,
Tammy Hervey, Anna Horvath, Thérèse Murphy, Anastasia Vakulenko,
the editorial team and peer reviewers. Special thanks to Sandra Kröger
and Thomas Pfister for encouragement and being so engaged! The usual disclaimer
applies.

(2) This paper was produced before the ratification
of the Reform Treaty or the Treaty of Lisbon, which repeals and replaces Article
152 EC with Article 168 Treaty on the Functioning of the European Union (TFEU).
The Treaty of Lisbon is due to come into force on 1 December 2009.

that the initial proposal to codify the ECJs jurisprudence (the
so-called Bolkestein Directive) produced huge political opposition since it
yoked health care to services more generally and, therefore, found its legal
base in Article 95 EC (repealed and replaced by Article 114 TFEU) (i.e.
internal market law)

the subsequent extraction of health care from services more generally

the use of discrete legislation for health care  but still
with Article 95 EC as the legal base.

(4) Cf. Haahr provides a more general
analysis of discursive and non-discursive elements, such as graphs and charts
before the Lisbon Strategy II. The governmentality perspective differs from
that adopted in this paper, particularly in relation to considering
legitimation and citizenship in powers operation.